These Tealium Subscription Terms and Conditions (the “Terms and Conditions”) form part of the Master Services Agreement (or “MSA”) by and between Tealium Inc., (“Tealium”) and Customer (as identified in the Service Order referencing these Terms and Conditions). These Terms and Conditions will apply to Customer’s use of the Services (as such terms are defined below) and to all Service Orders (as such term is defined below) that are entered into by Tealium and Customer. The specific Services that Customer is entitled to receive and the Service Term during which Customer is entitled to receive such Services are all as identified in the Service Orders. To the extent there is any conflict or inconsistency between the terms of a Service Order and other terms of this MSA, the terms of the Service Order will control solely with respect to such conflict or inconsistency.
Customer will pay the fees in the amounts and at the times stated in each Service Order and further agrees to pay undisputed invoice(s) in full within thirty (30) days after receipt thereof. Any payment not received when due will accrue interest on the outstanding amount at a rate of one percent (1%) per month or the highest rate allowed by applicable law, whichever is lower. Customer will pay to Tealium all expenses incurred by Tealium in exercising its rights to payments under this MSA, including, but not limited to, reasonable attorneys’ fees and the fees of any collection agency retained by Tealium. All sums payable under this MSA are exclusive of: (a) VAT or any relevant local sales taxes; (b) income taxes assessed by any governmental agencies, including, but not limited to withholdings and royalties; and (c) other taxes and similar fees imposed on the delivery of Services, (collectively “Taxes”). Customer will be responsible for the payment of all Taxes except for taxes on Tealium’s US income. Except as expressly set forth in this MSA, all fees due hereunder are non-refundable and are not contingent on any additional services or products to be provided by Tealium.
Tealium, or its licensors, will, at all times, retain all right, title and interest in and to: (a) all Technology that Tealium makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Services; and (b) all worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications and other proprietary rights related to the Tealium Technology. All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services will be owned by Tealium. Neither this MSA nor its performance transfers from Tealium to Customer any Tealium Technology. Neither this MSA nor its performance transfers from Customer to Tealium any Customer Technology, and all right, title, and interest in and to Customer Technology will remain solely with Customer. For the Term of this MSA, Tealium grants Customer a limited, non-exclusive, non-transferable (with no right to sublicense) right and license to copy the Code only for insertion in Pages for use in connection with the Services. Tealium does not grant any other rights to the Code. Tealium reserves all rights not expressly granted under this MSA, and there are no implied rights granted by Tealium hereunder, whether by estoppel or otherwise.
Customer will not do or attempt to do, or permit any third party to do or attempt to do, any of the following: (a) make the Services, including its content or documentation, or any portion thereof available for use or access to or by any third party; (b) modify, reverse engineer, disassemble, decompile, reproduce or create derivative works from or in respect of the Services, Tealium Technology, or any component thereof (c) use or access the Services or any part thereof in order to (i) develop a competitive or similar product or service or (ii) otherwise copy any ideas, features, functions or graphics of the Services, or the underlying software; (d) interfere with or disrupt or attempt to interfere with or disrupt the integrity or the performance of the Services or any information or materials therein; and (e) gain or provide unauthorized access to the Services or its related systems or networks. Customer will use the Services only for its own internal business operations and not for the operation of a service bureau.
(a) EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4, NEITHER PARTY’S AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF THIS MSA OR ITS PERFORMANCE HEREUNDER, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE, WILL EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO TEALIUM UNDER THIS MSA DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.
(b) NOTWITHSTANDING ANY PROVISION OF THIS MSA TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS, DEPRECIATION OF STOCK PRICE, BUSINESS INTERRUPTION, OR OTHER SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THE SERVICES, OR OTHERWISE UNDER THIS MSA, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
Customer represents and warrants that it will not transmit to Tealium nor require Tealium to process any Highly Sensitive Data. In the event that any personal data is transferred under this MSA, each Party will comply with all applicable laws and regulations, or any equivalent, applicable legislation. Customer hereby warrants and undertakes that it has obtained or will obtain the consent of any individual whose personal data is to be processed pursuant to this MSA, prior to transfer to Tealium, if such consent is required by applicable regulations or law. Customer agrees that, at its own expense, it will defend and indemnify Tealium against all costs, claims, damages, or expenses incurred by Tealium or for which Tealium may become liable due to any failure by Customer or its employees or agents to comply with any of its obligations under this Section 11.
All notices permitted or required under this MSA will be in writing, and will be deemed effective when: (a) delivered by personal delivery, (b) confirmed by the recipient, for notices delivered by electronic mail or facsimile transmission, or (c) three days after being sent by certified or registered mail (return receipt requested) or overnight courier. Notices will be sent to the addresses set forth in this MSA or such other address as either Party may specify in writing.
During the Term, Customer agrees that Tealium may refer to this MSA in a press release and use the Customer’s logo on its web site for the limited purpose of identifying Customer as a user of Services; provided that (a) Tealium will comply with any and all guidance Customer provides concerning such use of Customer’s logo and (b) Tealium will secure Customer’s prior written approval before using Customer’s logo in any other manner.
This MSA will be construed and enforced in accordance with the laws of the State of California without regard to its conflict of laws principles; provided, however, that the Uniform Computer Information Transactions Act will not apply even if adopted as part of the laws of the State of California. The Parties expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this MSA. Except for any action for injunctive or other equitable relief (which may be brought at any time in any court of competent jurisdiction), exclusive venue for any dispute will be San Diego County, California, and each Party agrees to personal jurisdiction in such venue, and waives any objection thereto.
If any term or provision of this MSA is held to be invalid or unenforceable by any court of competent jurisdiction, such provision will be construed to effectuate to the greatest possible extent the Parties’ expressed intent, and the remainder of this MSA will not be affected and will remain valid and enforceable. The failure of either Party to exercise or enforce any right or provision of this MSA will not constitute a waiver of such right or provision, and any waiver granted by a Party in one instance does not constitute a waiver for other instances.
The relationship between the Parties is solely that of independent contractors, and neither Party will have any authority to bind or commit the other. Nothing in this MSA will be deemed or construed to create a joint venture, partnership, employment, or agency relationship between the Parties for any purpose.
Neither this MSA nor any of the rights or duties arising out of this MSA may be assigned by Tealium or Customer without the prior written consent of the other Party, such consent not to be unreasonably withheld; except that Tealium may, without such consent, assign this MSA and its rights and duties arising out of this MSA to the transferee, or other successor in interest, in connection with the sale or transfer of all or substantially all of its assets or in connection with any merger, acquisition, re-organization or consolidation. Any attempted assignment in violation of the foregoing will be void.
In the event legal action of any kind is instituted arising out of the MSA, the substantially prevailing Party will be entitled to recover reasonable attorney’s fees from the non-prevailing Party.
The headings used for the sections of this MSA are for information purposes and convenience only and in no way define, limit, construe or describe the scope or extent of the sections.
This MSA constitutes the complete and entire agreement between the Parties with regard to the subject matter hereof, and supersedes and replaces any prior or contemporaneous agreements between the Parties regarding such subject matter. No oral or written representation that is not expressly contained in this MSA is binding on Tealium or Customer. No amendment to this MSA or any Service Order will be binding on either Party unless in writing and signed by both Parties.
This MSA does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties.
Neither Party will be liable for any breach of the MSA, other than any default in payment obligations, for any delay or failure of performance resulting from any cause beyond such Party’s reasonable control (“Force Majeure”), including but not limited to the weather, unavailability of utilities or communications services (including access to the Internet), civil disturbances, acts of civil or military authorities, or acts of God.
This Service Level Agreement (“SLA”) applies to implementations of Services being hosted through Tealium’s content delivery network service provider (“Delivery Network”). The SLA applies to the uptime levels of the Delivery Network for the purpose of serving Tealium JavaScript files (“Libraries”).
1. Service Commitment.
Tealium, through its agreement with Delivery Network will use commercially reasonable efforts to make Delivery Network servers available with a Monthly Uptime Percentage (defined below) of at least 99.9% during any month (the “Service Commitment”). In the event Delivery Network does not meet the Service Commitment, Customer will be eligible to receive a Service Credit as described below.
2. Definitions.
(a) “Monthly Uptime Percentage” means the percentage of available time within a given calendar month associated with Delivery Network serving of Libraries.
(b) “Monthly Subscription Amount” means the contracted amount for the Services for the Service Term, divided by the number of months in the Service Term (excluding fees for implementation, managed, and professional services and Additional Usage Fees).
(b) A “Service Credit” is a credit, calculated as set forth below, that Tealium may credit towards future invoices to Customer.
3. Service Credits.
Service Credits are calculated as a percentage of the Monthly Subscription Amount for the month in which the Service Commitment was not met in accordance with the schedule below. Tealium will apply any Service Credits only against future payments. If Customer has prepaid in full for all Services under the Agreement, Customer will be entitled to a refund of the Service Credit amount. Customer’s sole and exclusive remedy for any unavailability or non-performance of Delivery Network or other failure by Delivery Network to provide the Service Commitment is the receipt of a Service Credit in accordance with the terms of this SLA. Service Credits may not be transferred or applied to any other Customer account.
4. Credit Request and Payment Procedures.
To receive a Service Credit, Customer must submit a request by sending an e-mail message to services@tealium.com. To be eligible, the credit request must (a) include the list of Libraries that did not meet Service Commitment; (b) include, in the body of the e-mail, the dates and times of each incident that Customer claims to have experienced; (c) include Customer’s server request logs that document and corroborate Customer’s claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks); and (d) be received by Tealium within ten (10) business days after the end of the month in which the Service Commitment was not met.
5. SLA Exclusions.
The Service Commitment does not apply to any unavailability, suspension or termination of Customer’s account, or any other Delivery Network performance issues: (a) caused by factors outside of Tealium’s reasonable control, including any Force Majeure event or Internet access or related problems beyond the demarcation point of Delivery Network; (b) that result from any actions or inactions of Customer or any third party; (c) that result from Customer’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Tealium’s direct control); or (d) arising from the suspension and termination of Customer’s right to use Delivery Network in accordance with the MSA.
Updated November 16, 2015
Acceptable Use Policy (this “Policy“) describes prohibited uses of the web services offered by Tealium Inc. and its affiliates (the “Services“). The examples described in this Policy are not exhaustive. By using the Services, you agree to this Policy. If you violate the Policy or authorize or help others to do so, we may suspend or terminate your use of the Services.
No Illegal, Harmful, or Offensive Use or Content
You may not use, or encourage, promote, facilitate or instruct others to use, the Services for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. Prohibited activities or content include:
No Security Violations
You may not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System“). Prohibited activities include:
No Network Abuse
You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include:
No E-Mail or Other Message Abuse
You will not use any System to facilitate the distribution, publishing, or sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (e.g. “spam”), in violation of any law or regulation.
Our Monitoring and Enforcement
We reserve the right, but do not assume the obligation, to investigate any violation of this Policy or misuse of the Services. We may:
We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Policy.
Reporting of Violations of this Policy
If you become aware of any violation of this Policy, you will immediately notify us and provide us with assistance, as requested, to stop or remedy the violation. To report any violation of this Policy, please contact us at legal@tealium.com.